Attorney Grievance Commission v. Brown

517 A.2d 1111, 308 Md. 219, 1986 Md. LEXIS 346
CourtCourt of Appeals of Maryland
DecidedDecember 3, 1986
DocketMisc. Docket (Subtitle BV) No. 35, September Term, 1985
StatusPublished
Cited by19 cases

This text of 517 A.2d 1111 (Attorney Grievance Commission v. Brown) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Attorney Grievance Commission v. Brown, 517 A.2d 1111, 308 Md. 219, 1986 Md. LEXIS 346 (Md. 1986).

Opinion

ADKINS, Judge.

The Attorney Grievance Commission, acting pursuant to Maryland Rule BV9, filed a petition seeking disciplinary action against R. Edwin Brown, a member of the Maryland Bar since 7 October 1941. We referred the matter to Judge Peter J. Messitte of the Circuit Court for Montgomery County. In his exhaustive “Findings of Fact, Conclusions of Law, and Recommendations,” Judge Messitte rejected some of the Commission’s charges, but nevertheless concluded that Brown had violated DR 1-102 (A)(1) (violation of a disciplinary rule), DR 1-102 (A)(6) (engaging in conduct that adversely reflects on fitness to practice law), and DR 6-101 (failing to act competently). We shall reject Brown’s exceptions to Judge Messitte’s report and impose a reprimand.

The events giving rise to the charges against Brown span an approximate decade from 1973 or 1974 to the early 1980’s. They begin with his representation of Walter and Elmyra Hahn as to a real estate problem and end with his handling of their estates and related matters, Mrs. Hahn *222 having died in 1978 and Mr. Hahn in 1980. We shall discuss some of these events in more detail as we review Brown’s 13 exceptions to Judge Messitte’s findings and conclusions. Before we get to that, however, we must address a preliminary matter.

I. Brown’s Motion to Dismiss

Both before Judge Messitte and in this Court, Brown sought dismissal of the Commission’s petition for lack of jurisdiction. The lack of jurisdiction, according to Brown, arises from improper action by the Commission’s review board — improper action that not only flouted Brown’s constitutional rights to due process, equal protection, and protection against former jeopardy, but also amounted to violation of the Commission’s Administrative and Procedural Guidelines (“Guidelines”) 1 and ran afoul of the doctrines of res judicata and estoppel. What happened was this:

On 16 May 1985 the review board met, with 12 of its 18 members present. It found Brown in violation of various disciplinary rules, and voted 12-0 to administer a private reprimand. Rule BV7.c. On 5 June 1985, however, the board met again. There were 11 members present, and it seems that some of the 11 had not been present at the 16 May meeting. In any case, some of the members who had been on board in May were not in June. Specifically, the “reporting member” was not present in June. 2 At the June meeting, those present voted unanimously to “reconsider” the 16 May action, and to prefer charges against Brown. Those charges were preferred, and resulted in the matter now before us. It is Brown’s view that the 16 May vote of the review board was in some manner final, giving him a sort of “vested right” in a private reprimand* and that the *223 “reconsideration” in June produced the constitutional transgressions and other effects we have summarized. Judge Messitte rejected these contentions, and so do we.

Brown has not explained why he was denied equal protection. His former jeopardy claim is inapposite, because lawyer discipline proceedings are not criminal proceedings. Attorney Grievance Commission v. Stewart, 285 Md. 251, 258, 401 A.2d 1026, 1029, cert. denied, 444 U.S. 845, 100 S.Ct. 89, 62 L.Ed.2d 58 (1979). Nor need we engage in an extended discussion of what process is due at the review board level. Proceedings before the review board are confidential. Rule BV8. The respondent is not entitled to notice of a review board meeting. Guidelines, § 6-206. Ordinarily, the respondent does not appear and is not represented before the review board. Sections 6-301, 6-303. The same is true with respect to Bar Counsel. Section 6-303. We have characterized board proceedings as investigatory, informal, and similar to grand jury proceedings. Stewart, 285 Md. at 259, 401 A.2d at 1030. “[I]f a lawyer is given notice and the opportunity to defend in a full and fair hearing before a [judge], the question whether he was accorded due process of law by the Inquiry Panel and the Review Board is ordinarily immaterial.” Id.

Stewart, indeed, may well dispose of Brown’s due process argument, but that is a question we need not decide. This is because Brown’s notion that the board made a final decision in his favor, which could not be reconsidered, is simply wrong. On 16 May the board voted to reprimand Brown. A decision to this effect ordinarily is embodied in an “opinion” which is sent to Bar Counsel. Guidelines, §§ 6-501 through 6-507. The reprimand is then either served on the respondent, Rule BV7.c, or delivered to him or her personally by the board. Guidelines, § 6-507. So far as the record reveals, none of these things occurred after the 16 May vote. In short, that vote was never implemented or made final by the procedures intended to achieve that purpose. Therefore, there was no final action *224 for the board to “reconsider.” Its 5 June action, the vote to prefer charges, was properly implemented and was its only final decision in Brown’s case. The secret preliminary vote on 16 May vested no rights in Brown and the subsequent action in June denied him neither due process nor equal protection.

Since the 16 May action was not a final determination, by no stretch of the imagination could it give rise to a claim of either res judicata or collateral estoppel, even if we assume that those doctrines might somehow apply to action of the review board. If Brown, by “estoppel,” means “estoppel by conduct,” the argument is equally unavailing. That doctrine does not apply unless the conduct was relied upon to his or her detriment by the party asserting the estoppel. See Addressograph-Multigraph Corp. v. Zink, 273 Md. 277, 329 A.2d 28 (1974). Brown never knew of the 16 May action until after charges had been filed, and thus could not have relied on it to his detriment.

Brown’s reliance on § 6-409 of the Guidelines is likewise without merit. That section, as it stood in May and June, 1985, dealt with reconsideration of a board decision on the basis of evidence not presented to the inquiry panel. It apparently was intended to apply only when the board had directed Bar Counsel to file charges, since § 6-409(A)(4) required a motion for reconsideration to be “received by the Chairman of the Review Board prior to the filing of charges by Bar Counsel” and § 6-409(C)(l) directed the chairman to “advise Bar Counsel to stay the filing of charges” when a proper motion to reconsider was received. Section 6-409 is simply inapplicable to the situation before us. In any case, as we have seen, the board’s June action was not in fact a reconsideration of any final action taken in May. The May vote was preliminary; the final action occurred after the June vote.

That the same persons who were present in June were not necessarily the same as those present in May is unimportant. The “reporting member,” it seems, was not *225

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Bluebook (online)
517 A.2d 1111, 308 Md. 219, 1986 Md. LEXIS 346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/attorney-grievance-commission-v-brown-md-1986.